Punjab-Haryana High Court
Lakhbir Singh vs Avtar Singh on 1 July, 2024
233
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CR-3397-2017
2017
Date of Decision: July 01, 2024
LAKHBIR SINGH ........Petitioner
Versus
AVTAR SINGH ........Respondent
CORAM: HON'BLE MR. JUSTICE HARKESH MANUJA
Present: Mr. Ajay Pal Singh, Advocate for the petitioner.
Mr. M.S. Randhawa, Advocate for the respondent.
****
HARKESH MANUJA,
MANUJA J. (ORAL)
By way of present revision petition, challenge has been laid
to an order dated 13.01.2017 passed by the Executing Court
Court,, Patiala
whereby, an application filed at the
the instance of petitioner/
petitioner/decree-holder
der
seeking following corrections
correctio in the khasra numbers mentioned in the
decree came to be partly allowed:-
allowed
From Khasra
Kha Nos. 53//2 (7-8)
8) to 53//25/2 (7
(7-8) and
From Khasra Nos. 56//1 (4-11)
11) to 56//1/1 (4
(4-11)
2. Briefly stating, based on an agreement to sell d
dated
ated
03.01.2004, the petitioner/decree-holder
petitioner/ holder filed a suit for possession by
way of specific performance qua the following land against the
respondent-judgment
judgment debtor:-
debtor
"37K-19M
19M being ½ share, out of land measuring 75K
75K-18M,
18M, comprised
in Khewat No.17, Khatauni No. 43, Khasra Nos. 39//2/2/3/1(1
39//2/2/3/1(1-18), 3/2/2(0--
15), 7/1(2-4),8/1/2[2-9],
7/1(2 4/1/2 [1 - 12], 8/2[4
8/2[4-13],14(8-8), 16/2[2-16],17(8--
0),25/1(4
0),25/1(4-5),13/2(2-8),7/2(3-16),18/1(2-3
3),52//21/1(3-4),53//2(7-8), 55// 5/2
(7-8),56//1/1(4
8),56//1/1(4-11), 10[8-0],
0], situated at village Labana Karmu, Teh. Nabha,
as per jamabandi for the year 2001-02
2001 02 along with share in Chah, Bore,
Pakha, Khal, Rasta,
Rast Paha, Pahi, etc."
3. The aforementioned suit after contest came to be decreed in
favor of petitioner-plaintiff, vide judgment and decree dated 07.12.2009.
Relevant extract from the decree sheet drawn on 07.12.2009 is
reproduced hereunder:-
"This suit is presented today i.e. 07.12.2009 before me (Sh. Ranjit
Kumar Jain, PCS, Civil Judge (Senior Division, Patiala) for final disposal, in
the presence of Sh. Rakesh Gupta, Advocate for the Plaintiff, Shri J.D.
Chopra, Advocate for defendant. It is hereby ordered that claim of plaintiffs
succeeds and a decree for specific performance of agreement is passed in
favour of plaintiff and against the defendant. Defendant is directed to
execute the saledeed on the basis of agreement to sell in question within
three months from today, otherwise, plaintiff shall deposit rest of the
consideration amount plus expenses of execution of sale deed in the court
within one month after these three months and file application for execution
through the court. Plaintiff is also entitled for possession of the suit property
after execution of sale deed. A further decree for permanent injunction is
passed in favour of plaintiff and against the defendant restraining him from
alienating the suit land in any way to any other person except the plaintiff.
Parties are left to bear their own costs."
4. During execution, warrants of possession were issued,
however, an objection was raised by the Executing Agency qua khasra
Nos.53//2 and 56//1(4-11), the same not being part of revenue records
and the decree being not executable in this regard. Faced with this,
upon verification of the latest revenue record in the shape of jamabandi
for the year 2010-2011, an application came to be filed at the instance
of petitioner/decree-holder invoking Section 152 of Code of Civil
Procedure 1908, for seeking correction of the abovementioned two
khasra numbers. The said application was contested by respondent-
judgment debtor. The Executing Court vide its order dated 13.01.2017,
while relying upon the details of the land mentioned in the plaint,
allowed the correction as regards khasra Nos.56//1 to 56//1/1 (4-11)
whereas declined the prayer qua correction of khasra No. 53//2 (7-8) to
53//25/2 (7-8). For the reasons that khasra No.53//2 (7-8) was never
pleaded in the plaint being part of suit land.
5. Impugning the aforesaid order, learned counsel for the
petitioner/decree-holder submits that the agreement to sell dated
03.01.2004 as well as the plaint were based on the revenue record
available at that point in time especially in the shape of jamabandi for
the year 2001-02 wherein, the respondent- judgment debtor besides his
other land was incorrectly shown to be owner-in-possession of khasra
No.53//2 (7-8) instead of khasra No.53//25/2(7-8) and as such the
mistake in the agreement as well as in the plaint went on to be recorded
in the decree. He further submitted that the error was only for bona fide
reasons and the petitioner/decree-holder never gained anything illegal
on that account and thus the decree was required to be
amended/corrected. In this regard, learned counsel for the petitioner
relies upon a judgment passed by the Hon'ble Apex Court in Civil
Appeal No.1058 of 2009 titled as "Tilak Raj Vs. Baikunthi Devi"
reported as 2009(2) Civil Court Cases 381 (SC).
6. On the other hand, the prayer made herein has been
vehemently opposed at the instance of learned counsel representing
the respondent-judgment debtor while submitting that in the absence of
any amendment been sought in the plaint as regards addition of khasra
numbers, no correction could be ordered in the decree as the same
would create an anomalous situation being against pleadings and
accordingly, the impugned order warrants no interference.
7. I have heard learned counsel for the parties and gone
through the paper-book. I find substance in the submissions made by
learned counsel for the petitioner.
8. A perusal of record shows that besides other land which
was made part of the agreement dated 03.01.2004 as well as the plaint
dated 29.07.2004, khasra No.53//2 (7-8) was mentioned therein on the
basis of the revenue records available at that point in time in the shape
of jamabandi for the year 2001-02 and the respondent-judgment
debtor/vendor was recorded to be owner-in-possession thereof. The
correction of ownership qua khasra No.53//2 (7-8) to 53//25/2 (7-8) in
favour of respondent-judgment debtor was carried out only at the time
of preparation of jamabandi for the year 2011-12 reflecting him to be the
owner of khasra No.53//25/2 (7-8) besides other land.
9. In such circumstances, the mistake committed by the
plaintiff-petitioner/decree-holder while mentioning khasra No. No.53//2
(7-8) instead of 53//25/2 (7-8) in the agreement to sell dated 03.01.2004
and its reiteration in the plaint dated 24.07.2004 followed by inclusion
thereof in the decree dated 07.12.2009 can only be said to be due to
bona fide reasons based on the revenue records prepared and
maintained by the authorities concerned at the time of execution of
agreement to sell as well as at the time of filing of plaint and the
petitioner cannot be faulted with or even cannot be non-suited on
account of their fault qua the aforementioned Khasra No.53//25/2 (7-8)
so as to deprive him of the benefits of decree dated 07.12.2009 passed
in his favour. More importantly, that the respondent - judgment
debtor/vendor never ever disputed or challenged the correction of
khasra girdawari in his favour for the land forming part of khasra
No.53//25/2 (7-8) instead of khasra No.53//2 (7-8) as carried out in the
jamabandi for the year 2011-12 by the revenue authorities and thus
cannot claim any benefit on account of previous wrong entries. The
afore-stated view finds strength from the decision made by the Hon'ble
Apex Court in case of Tilak Raj(Supra). The relevant Paragraph No.17
thereof is reproduced hereunder for reference:-
"We feel that if we direct the appellant to seek remedy under
the provisions of Section 152 of the CPC, it will only delay and prolong
the litigation between the parties. In order to cut short the litigation and
to save precious time of the court as also to give quietus to the entire
dispute, we direct in exercise of the powers under Section 152 of the
CPC that the decree be corrected by giving the correct Khasra
No.26R/52 in place of Khasra Number 25R/52. Having decided so, in
the aforesaid manner, we are not required to go into the arguments
advanced before us and adjudicate as to whether Order 2 Rule 2 CPC
would be applicable in the facts and circumstances of the present
case and whether or not the subsequent suit was barred."
10. It may be relevant to point out here that in case of Tilak Raj
(Supra) also the necessary correction in the decree was ordered qua
correction of khasra number, solely based on the corrected revenue
records de hors the wrong khasra number been mentioned in the plaint.
The said order was also passed in terms of Section 152 of CPC,
despite a serious objection been raised by the respondents-defendants
as regards the availability/non availing of remedy under Order 6 Rule 17
CPC by the decree-holder seeking amendment of plaint.
11. Furthermore, in case of any ambiguity in the plaint regarding
the description or identity of the suit property, even though, on account
of carelessness of the parties, it can be cured by the Court in exercise
of powers under Section 152 of Code of Civil Procedure, 1908 being an
inadvertent error while relying upon the up-to-date records regarding
ownership including the revenue records-jamabandi. Reference in this
regards can be made to a decision passed by the Hon'ble Apex Court in
"Pratibha Singh and Anr. Vs. Shanti Devi Prasad and Anr." reported
as 2003(1) R.C.R. (Civil)316. Relevant paragraph No.16 therefrom is
reproduced hereunder:-
"16. When the suit as to immovable property has been decreed and
the property is not definitely identified, the defect in the court record
caused by overlooking of provisions contained in Order 7 Rule 3 and
Order 20 Rule 3 of the Civil Procedure Code is capable of being
cured. After all a successful plaintiff should not be deprived of the
fruits of decree. Resort can be had to Section 152 or Section 47 of the
Civil Procedure Code depending on the facts and circumstances of
each case - which of the two provisions would be more appropriate,
just and convenient to invoke. Being an inadvertent error, not affecting
the merits of the case, it may be corrected under Section 152 of the
Civil Procedure Code by the Court which passed the decree by
supplying the omission. Alternatively, the exact description of decretal
property may be ascertained by the Executing Court as a question
relating to execution, discharge or satisfaction of decree within the
meaning of Section 47 CPC. A decree of a competent Court should
not, as far as particable, be allowed to be defeated on account of an
accidental slip or omission. In the facts and circumstances of the
present case we think it would be more appropriate to invoke Section
47 of the Civil Procedure Code."
12. In view of the aforesaid discussion well as purely in the
interest of justice and also to avoid the parties to indulge themselves in
another long drawn uncalled for litigation, the prayer made on behalf of the
petitioner seeking amendment/correction of decree dated 07.12.2009 to
the extent of incorporating khasra No.53//25/2 (7-8) instead of 53//2 (7-8)
is hereby allowed and the impugned order dated 13.01.2017 passed by
the Executing Court is modified in the said manner.
13. Resultantly, the present petition is allowed.
01.07.2024 (HARKESH MANUJA)
Tejwinder JUDGE
Whether speaking/reasoned Yes/No
Whether Reportable Yes/No
